Opinion
Case No. 02-3145-SAC
December 12, 2002
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Lansing Correctional Facility, proceeds pro se.
PROCEDURAL HISTORY
On February 13, 1998, petitioner was convicted of aggravated burglary, nine counts of burglary, ten counts of theft, and obstructing a law enforcement officer. (Trial Transcript, Vol. V, pp. 7-9). Petitioner's convictions were affirmed on direct appeal. State v. Martin, 26 P.3d 728 (Table) (Kan.Ct.App. June 8, 2001). The Kansas Supreme Court denied the petition for review. State v. Martin, No. 99-82607-A, 2001 Kan. LEXIS 638 (Kan. Sept. 25, 2001).
Petitioner commenced this action on May 23, 2002, alleging the following grounds for relief: 1) improper admission of uncharged crime evidence, 2) violation of law of the case doctrine, 3) improper admission of prison address book, 4) prejudicial in-court identification, and 5) insufficient evidence. On July 2, 2002, respondents filed an answer and return. (Doc. 7). Petitioner has not filed a traverse.
STANDARD OF REVIEW
Because Mr. Martin's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of petitioner's claims is governed by the provisions of AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under AEDPA, a writ of habeas corpus cannot be granted unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented at trial," 28 U.S.C. § 2254(d)(2). State court factual findings are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that a state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 364-365. A state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 365.
FACTUAL BACKGROUND
Petitioner's convictions arose out of several different thefts and burglaries which occurred between May 19, 1997 and June 30, 1997. Petitioner was linked to the bulk of these crimes due to his practice of covering the peephole of the apartment with foil or paper. Petitioner was also linked to the crimes through the testimony of Tracy Davis, a person petitioner paid to pawn the stolen items for him, through eyewitness identification, and through items located on petitioner at the time of arrest.
GROUND ONE — EVIDENCE OF UNCHARGED CRIMES
Petitioner contends the trial court committed error when it found that evidence of other uncharged crimes could be introduced as res gestae evidence. Petitioner complains of this evidence as introduced through two witnesses, Mr. Gallardo and Ms. Taylor. The Kansas Court of Appeals resolved the claim regarding Mr. Gallardo's testimony as follows:
Mr. Gallardo was a resident of the Rose Hill Apartment complex. On the morning of May 23, 1997, Mr. Gallardo heard "continuous pounding" on his neighbor's door. He looked through the peep hole in his door to see what was causing the commotion. He observed a black man knocking on the neighbor's door. Moments later Gallardo heard a noise at his own door. Upon investigation, he found a piece of foil covering his peep hole. He also saw a black man trying to pry open his neighbor's door with a screw driver. When confronted, the man ran away. At trial, Gallardo identified Martin as the man he saw at his neighbor's door.
Martin argues that the admission of Gallardo's testimony was not properly considered as part of the res gestae because it formed no part of the charged burglaries and because it was not automatic or unintended incident of the litigated act. Martin claims the testimony would be admissible only under K.S.A. 60-455, as proof of identity, after a proper limiting instruction is given.
. . . .
Evidence that has a direct bearing on, and a relation to, the commission of an offense is admissible without a limiting instruction and is not rendered inadmissible because it may disclose other or independent offenses. The law allows the admission of evidence as part of the res gestae of acts made before, during, or after the principal event. Acts or declarations submitted as part of the res gestae must be so closely connected with the principal occurrence as to form in reality a part of the occurrence.
Res gestae includes those circumstances or acts which are automatic and undesigned incidents of the particular litigated act and which may be separated from the particular act by lapse of time but are illustrative of that act. It is the whole of the transaction under investigation or being litigated. These acts or declarations may be admissible as part of the res gestae to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
On the morning of the same day that Gallardo observed Martin trying to pry open his neighbor's door, Greg Johnson's apartment was broken into and items of his property stolen. The Johnson incident constituted one of the burglaries charged to Martin. Johnson's apartment was located in an apartment complex near Gallardo's apartment. Johnson's door was forced open and the deadbolt was broken. Additionally a small piece of foil of a similar material that covered Gallardo's peep hole covered the peep hole on Johnson's door. Peep hole covering occurred in three other burglaries of apartments charged to Martin. Several police officers testified that they had never before seen a method of operation where a burglar covered an apartment door peep hole.
We believe Gallardo's testimony was part of the res gestae and relevant to prove identity.
Martin, 26 P.3d at pp. 2-5 (citations omitted).
Review of this evidentiary error is limited to whether admission of this testimony rendered petitioner's trial so fundamentally unfair that he was a denied a constitutionally protected right. See Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th Cir.). If not, the claim is governed by state law and is not cognizable in a habeas proceeding.
The fact that petitioner was seen attempting to enter a nearby apartment on the same day as one of the charged crimes, where foil was also used to cover the peephole, was relevant to prove petitioner's identity. See Featherstone v. Estelle, 948 F.2d 1497, 1502-03 (9th Cir. 1991) (admission of testimony which demonstrated petitioner's common scheme and identity in previously uncharged and charged crimes did not violate due process).
Petitioner also challenges the admission of Linda Taylor's testimony on res gestae grounds. The Kansas Court of Appeals resolved this claim as follows:
Martin's second claim of res gestae error involves Linda Taylor's testimony. Ms. Taylor testified that her car, a brown Suburban with a Missouri license tag number 393BBZ, was stolen on May 30, 1997. . . .
On May 30, 1997, William Volkamer's apartment in the Rose Hill Apartment complex was burglarized. Michael Welchans resided at the Rose Hill apartment complex. On May 30, 1997, he saw a Suburban in the apartment parking lot with a Missouri license tag with it first three numbers being 393.
On the same day, Sheri Anderson-Pierce, a Rose Hill Apartment complex resident, observed a Suburban parked in the parking lot. The Suburban had Missouri license plates. She later identified Martin as the driver of the Suburban.
In Davis, the Kansas Supreme Court affirmed the introduction of res gestae evidence concerning the theft of a car. 256 Kan. at 20. The State argued the evidence of the theft was relevant because the vehicle was used in three incidents with which the defendant was charged. The court specifically noted that the evidence was relevant because the car was stolen the day before the first incident occurred. 256 Kan. at 22. . . .
We believe Taylor's testimony was properly considered as part of the res gestae of the crimes. The car was stolen the same day it appeared at the scene of a burglary. These events are closely connected and in accordance with Davis, the evidence is relevant.
Martin, 26 P.3d at pp. 5-6. Linda Taylor's testimony served to corroborate Michael Welchans's and Sheri Anderson-Pierce's testimony which described the vehicle seen at the scene of one of the burglaries. This testimony was relevant.
The admission of this testimony did not render petitioner's trial fundamentally unfair. Relief should be denied on ground one.
GROUND FOUR — IN-COURT IDENTIFICATION
Petitioner next alleges error was committed when Mr. Gallardo was allowed to make an in-court identification of petitioner, despite Mr. Gallardo's failure to identify petitioner in a pre-trial photographic line-up. When defense counsel initially objected to the in-court identification, he was not aware that just one week earlier, Mr. Gallardo had failed to pick petitioner out from a photo array. (Trial Transcript, Vol. 2, p. 318). It was not until after the in-court identification and mid-way through the direct examination of Mr. Gallardo that the prosecution became aware of this fact and informed defense counsel and the court. Id. at p. 321. The Kansas Court of Appeals resolved this claims as follows:
When shown a photographic line-up one week prior to trial, Mr. Gallardo said one or two of the men looked familiar, but he could not make a positive identification. Mr. Gallardo told the police officer that he "sometimes has somewhat of a problem picking someone out of pictures." (Trial Transcript, Vol. 2, p. 344).
Martin argues that the circumstances of the in-court identification were as suggestive as a one-person lineup. Martin contends the in-court identification was flawed because he was the only black male in the courtroom and because Gallardo knew he was the defendant.
. . . .
Gallardo had the opportunity to view the man twice. First, when looking through the peep hole and again when he opened the door and confronted the man in the hallway.
Gallardo's attention was first alerted when he heard the unusual pounding on his neighbor's door. When he confronted the man in the hallway, his attention was focused on the man prying on the door with a screwdriver. Gallardo was not doing anything but observing the man, first through the door peep hole and then in the hallway.
Gallardo gave a physical description of the man he saw and the clothing he was wearing. Gallardo's description of the man matches two other witnesses' descriptions of Martin. While the descriptions are not identical, they are close enough to convince us that Gallardo's description of Martin was accurate.
The length of time between Gallardo observing the man in the hallway and the time of the in-court identification was less than 1 year.
Gallardo's in-court identification of Martin fits the criteria for admissibility as established in Bornholdt.
Martin, 26 P.3d at 7-9.
In determining whether the identification of petitioner was constitutional, the court must determine: (1) whether the procedure used was unnecessarily suggestive and, if so, (2) whether the reliability of the identification outweighs the corruptive influence of the suggestive procedure. Archuleta v. Kerby, 864 F.2d 709, 711 (10th Cir. 1989); Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The reliability of the identification is based upon the examination of five factors: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
The in-court identification of petitioner was unmistakably suggestive. See U.S. v. Beeler, 62 F. Supp.2d 136, 142-143 (D.Me. 1999) (surveying cases which note the "inherently suggestive" nature of in-court identifications). He was the only African-American in the courtroom and he was seated at the defense table. Although an in-court identification may have been permissible had Mr. Gallardo been able to identify petitioner before trial, his failure to do so renders the in-court identification suspect. The following exchange between defense counsel and Mr. Gallardo illustrates the suggestive nature of the procedure:
• Tell me something. When you identified the gentleman to my right as being the man you saw —
A. Uh-huh.
• — how many black males were in the courtroom?
A. One, sir.
Q. Just one. Okay. In terms of picking somebody out today, you had one option, is that correct?
A. I had one option, that's the gentleman that I see here, correct, sir.
Q. Okay, And, when you identified this man as being the person you saw, did you understand that this man is the criminal defendant in this case?
A. I'm assuming that he is, sir. I assume he is.
(Trial transcript, Vol. 2, p. 326).
The Kansas Court of Appeals' did not examine the suggestiveness of the procedure. Instead, they hinged their analysis on the factors which weighed in favor of the reliability of Mr. Gallardo's in-court identification. Even if the in-court identification procedure was unnecessarily suggestive, Mr. Gallardo's identification may stand if its reliability outweighs "the corruptive influence of the suggestive procedure." Archuleta, 864 F.2d at 711.
On the morning of the burglary, Mr. Gallardo heard continuous pounding on his neighbor's door and he specifically looked through the peephole to see what was going on. (Trial Transcript, Vol. 2, p. 314). He saw that it was a black male knocking and then he laid back down on the couch. Id. He then heard another noise and opened up his door, noticing that there was a piece of foil covering his peephole. Id. at p. 315. He then saw someone trying to pry open his neighbor's door, confronted the man, and the man took off running. Id. He viewed the man long enough to describe the tool he was using and the clothes he was wearing. Id. He estimated the man's height at approximately 5'7", his weight at about 160 pounds, and his build as somewhere between average and stocky. Id. at 317-18, 325. He also recalled that the man wore prescription glasses with large frames. Id. at 326, 331. Mr. Gallardo had ample opportunity to view the subject and his attention was focused on the person in the hallway, nothing else. When asked how sure he was of his in-court identification, Mr. Gallardo said: "I remember it pretty well. Other than his hair was a little longer, it was pretty closely cut." (Trial Transcript, Vol. 2, p. 319). These facts weigh in favor of the reliability of Mr. Gallardo's in-court identification.
The accuracy of the witness' prior description of the criminal is also a factor to be considered. Mr. Gallardo's description of the subject was somewhat inaccurate when compared to other descriptions of petitioner, which described him as closer to six feet and two hundred pounds. In addition, when defense counsel again showed Mr. Gallardo the photo array at trial, after Mr. Gallardo had already identified petitioner in the courtroom, he picked out the wrong individual from the photograph. Most importantly, Mr. Gallardo had failed to identify petitioner from a photo array just a week earlier. Finally, almost nine months passed between Mr. Gallardo's identification of petitioner at trial and the burglary.
Under these circumstances, it cannot be said that the reliability of Mr. Gallardo's identification outweighed the corruptive influence of the in-court identification procedure.
Because a constitutional error occurred at petitioner's trial, this court must determine whether Mr. Gallardo's identification had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, (1993) (quotation omitted). Given the overwhelming weight of evidence against petitioner, this court concludes that it did not.
Even if Mr. Gallardo would not have been allowed to identify petitioner in court, he still would have testified that he saw a black male with glasses of a stocky build attempting to break into his neighbor's apartment and that his own peephole had been covered with foil from a cigarette pack. Mr. Gallardo lived at the Rose Hill Point apartment complex and the attempted break-in he witnessed occurred on May 23, 1997. Another break-in occurred that same day at a nearby apartment complex and the perpetrator also used foil from a cigarette package to cover the peephole. On May 30, 1997, at the Rose Hill Point complex, another witness saw a man fitting petitioner's description loading stereo equipment into a stolen Suburban. Another witness was able to positively identify petitioner from a photo array as the man she saw driving a Suburban into the complex on the same day and lingering around the complex. Petitioner's fence, Tracy Davis, testified that on her first pawn with him, petitioner was driving a Suburban. In addition, items pawned by Tracy Davis were discovered to be items taken from Greg Johnson's apartment on the same day that Mr. Gallardo saw petitioner attempting to break-in at a nearby apartment. The aforementioned evidence provides the same connecting link as the in-court identification by Mr. Gallardo and there are numerous other pieces of evidence, enumerated in ground five, which connect petitioner to these crimes.
In addition to the overwhelming weight of evidence against petitioner, defense counsel did an adept job of pointing out the weaknesses in Mr. Gallardo's testimony. He highlighted the fact that his description of petitioner, 160 pounds and 5'7", was at odds with Mr. Martin's actual physical appearance. (Trial Transcript, Vol. 2, p. 325; Vol. IV, p. 138). Under cross-examination, he elicited testimony from Mr. Gallardo which led to the inference that Mr. Gallardo was only able to pick petitioner out in court because he was the sole black man there and because he was seated at the defense table. (Trial Transcript, Vol. 2, p. 326). Mr. Gallardo was again showed the photo array at trial and he picked out an individual who was not petitioner; this had to have a very damaging effect upon his testimony in the eyes of the jury. Id. at 329-30. He also admitted that he was unable to identify petitioner when he was shown a photo array just a week earlier. Id. at p. 329. Finally, the jury was instructed on seven factors which might affect the accuracy of an eyewitness identification, including whether the witness had ever failed to identify the defendant on a prior occasion. (Trial Transcript, Vol. 4, pp. 102-103).
Under these circumstances, the trial court's error in allowing Mr. Gallardo to make an in-court identification of petitioner did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.
Therefore, it cannot be said that the Kansas Court of Appeal's decision on this matter "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Relief should be denied on ground four.
GROUND FIVE — SUFFICIENCY OF THE EVIDENCE
Petitioner claims that there is insufficient evidence to convict him of the break-in of the apartments of the following victims: Michael Dill, Ann Murray and Tracy Best, John and Gabrielle Werner, John Hanson, Adrienne Bishop, and David Helt. The Kansas Court of Appeals resolved this claim as follows:
Counts 8 and 9 involve the burglaries of Michael Dill's and Ann Rule's apartments. Dill lived across the hall from Ann Rule. The burglaries were reported on the same day. The items Dill had stolen were the same as in the other thefts. We believe this is enough circumstantial evidence to allow the jury to infer that Martin was the culprit.
Counts 16, 17, 18, 21, and 22 involve the placing of foil or other paper over the victims' peep holes. Several police officers testified at trial that they had never seen a method of operation where the burglar covered the peep hole of an apartment door. We believe this signature method of operation allows a reasonable inference that Martin was the guilty party. This inference is bolstered by the findings at Bradley Cure's apartment. The officer investigating the scene there found paper on the floor in front of Cure's apartment. Martin's fingerprint was found at the crime scene around Cure's apartment. Accordingly, we believe there was sufficient evidence to infer Martin's guilt.
Counts 14 and 15 involved Amy Murray and Tracey Best. They lived across the hall from Werner, who had paper placed over his peep hole. The burglaries occurred on the same day. We believe it was reasonable for the jury to infer that crimes committed in such close physical proximity in such a short time were committed by one person. The same rationale justifies the convictions for Counts 19 and 20 which involved John Hanson. Hanson lived across the hall from the Bishops, and the burglaries occurred on the same day. There was paper placed over the Bishops' peep hole.
We believe there was sufficient evidence for the jury to find Martin guilty of these offenses. Detective Boyer testified that ll of the crimes had a certain method of operation. He noted the method of entry, the use of pry tools, and the covering of peep holes. He also found it significant that the same items were taken at every residence. The burglaries were also committed during working hours. Viewing this evidence in the light most favorable to the prosecution, we find there was sufficient evidence to convict Martin of the offenses.
Martin, 26 P.3d at 9-11.
A federal court may grant habeas relief only if it determines that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). "The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. There is a presumption that "the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wright v. West, 505 U.S. 277, 296-97 (1992). The federal court does not weigh the evidence, and "must accept the jury's resolution of the evidence as long as it is within the bounds of reason." Kelly v. Roberts, 998 F.2d 802, 808 (10th Cir. 1993). "To be sufficient, the evidence supporting the conviction must be substantial; that is, it must do more than raise a mere suspicion of guilt." Id.
There is conflicting Tenth Circuit authority as to whether a challenge to the sufficiency of the evidence presents a question of law or a question of fact. Fields v. Gibson, 277 F.3d 1203, 1220 (10th Cir.), cert. denied 123 S.Ct. 533 (2002). Rather than choose between the two standards, the court has chosen to examine petitioner's claim under both. See id. at 1221 ("it is possible to avoid deciding what standard of review applies when the petitioner's claims are clearly meritless under either standard").
As a question of law, the issue is whether the Kansas Court of Appeals' decision was contrary to or an unreasonable application of the "rational factfinder" standard articulated in Jackson. See Fields, 277 F.3d at 1221; 28 U.S.C. § 2254(d)(1). As a question of fact, petitioner must show by clear and convincing evidence that the state court determination was an unreasonable determination of fact. Fields, 277 F.3d at 1221; 28 U.S.C. § 2254(d)(2)-(e)(1). Petitioner's claim fails under either standard.
Petitioner's complaints about the evidence request the court to view each break-in in an individual vacuum, without taking into account the cumulative links between each crime. Petitioner's complaints do not have any validity when the evidence is viewed in the light most favorable to the prosecution.
Based on the evidence presented at trial, a rational factfinder could have found petitioner guilty of these crimes and, alternatively, petitioner has not shown by clear and convincing evidence that the Kansas Court of Appeals' decision was an unreasonable determination of fact. Relief should be denied as to ground five.
GROUNDS TWO AND THREE — PROCEDURAL DEFAULT
In ground two, petitioner alleges the trial judge violated the law of the case doctrine by reversing another judge's decision to exclude other crimes evidence from petitioner's trial. In ground three, petitioner claims error in the admission of an address book bearing the words "Prison Fellowship." Respondents contend that petitioner has procedurally defaulted these grounds by failing to include them in his petition for review to the Kansas Supreme Court.
Before proceeding in a federal action, petitioner must present the issues in the state courts in a posture allowing full and fair consideration. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Smith v. Atkins, 678 F.2d 883, 885 (10th Cir. 1982). The exhaustion requirement is not satisfied unless all the claims asserted in the habeas petition have been presented for state court review by "invoking one complete round of the State's established appellate review process." Id. In Kansas, this includes a petition for discretionary review to the Kansas Supreme Court. See Gonzales v. McKune, 279 F.3d 922, 924 (10th Cir. 2002) (noting that petitioner procedurally defaulted his claim by failing to present it in a petition for review to the Kansas Supreme Court).
Because the time for petitioning the Kansas Supreme Court for review of this issue has long since passed, these claims are subject to an anticipatory procedural default. See Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992) ("[I]f the court to which petitioner must present his claims in order to meet the exhaustion requirement would now find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review.") (relying on Coleman v. Thompson, 501 U.S. 722 (1991)).
The procedural default doctrine precludes federal habeas review of a federal claim that a state court would decline to consider due to the petitioner's noncompliance with state procedural rules unless petitioner can show (1) both cause and prejudice or (2) manifest injustice. See Coleman v. Thompson, 501 U.S. 722, 749 (1991). Petitioner has asserted neither cause and prejudice nor manifest injustice and, therefore, relief should be denied as to grounds two and three.
RECOMMENDATION
IT IS THEREFORE RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus (Doc. 1) be denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner and counsel of record.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.